何謂定居於海外？海外出世港人奉旨係永久居民？

85. Whilst Ms LEUNG gave evidence that the permanent resident cards held by her husband and herself are subject to renewal, the fact remained that the Appellant’s parents had attained permanent resident status in Canada as early as in May 2005 (this is one of the important factors to be considered according to the Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases (Editors-in-Chief being Cai Cheng and Xiao Yang)(《中華人民共和國百法釋解案例全書》主編:蔡誠、蕭揚) and the Appellant’s parents were not subject to any limit of stay when they were in Canada. They could stay in Canada as long as they wish.

86. The Appellant’s mother gave birth to her first daughter, Jane in Ontario in April 2005. It was the common intention of both the Appellant’s parents that Jane should grow up in Canada. The Appellant was subsequently born on 3rd April 2008 in Canada. After the birth of the Appellant, Ms LEUNG applied for a driving licence.

87. All long, the Appellant’s family lived in a property owned by the Appellant’s paternal grandfather. In or about 2008 or 2009 and after the Appellant was born, the Appellant’s parents and elder sister Jane obtained Canadian passports and attained the status as Canadian citizens. By the end of 2010, the Appellant’s parents had returned their permanent resident cards to the Canadian authorities.

88. During the years between 2004 and 2009, the Appellant’s parents were out of Hong Kong for most of the time. They were all along residing in Canada. The Appellant’s parents expressly admitted that during the said years, they did intend to settle in Canada for good. They did live in Canada continuously for about 5 years and it was only unfortunate that they were not able to find any job.

89. During their stay in Canada, the Appellant’s parents had obtained ‘OHIP Cards’ by which they were covered by health insurance. They also had obtained their respective social insurance cards which had no expiry dates and which were a ‘must have’ for any person who wanted to work in Canada.

90. During the said years, the couple adopted Canada voluntarily as their abode. They resided there voluntarily for settled purposes as part of their regular order of life for the time being. They were ordinarily resident in Canada in those years. As seen from R v Barnet London Borough Council ex parte Shah, supra, at 343G – 344B – D, it is not required that the couple must intend to stay in Canada indefinitely. The purpose, while settled, could be for a limited period of time only. Employment and family were the clear reasons why the couple chose Canada as their regular abode.

91. In the premises, we are not satisfied that the Appellant has discharged his burden to prove on the balance of probabilities that he has a right of abode in Hong Kong and should be given HKPR status. We are of the view that at the time of the Appellant’s birth, (1) he had acquired or had (‘具有’) foreign nationality and that (2) his parents had settled in Canada.” (emphasis added)

I don’t think this weak SAR Gov’t dares revoke the permanent resident identity cards issued before 1997 as it will involve/affect the interest of many middle and upper class people. And those people are able to turn HK upside down.

I have a question. According to Basic Law article 24, The permanent residents shall be:
( 1 ) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
( 2 ) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;
*( 3 ) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

So I do not understand why the children born in Canada cannot have HKPR status. They do not have Chinese Nationality, it is normal and understood.

re magiccello: the focus is on (2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region. The kid has not been fulfilled this requirement (yet) , so the Court rejects his parents’ request of obtaining HKID.

re: turbodiesel, I don’t think that’s quite right. I agree with magiccello, the kid is fighting on the premise that he was born outside of Hong Kong, to parents that were of Chinese nationality. By clause (3) he should enjoy PR status. However, the court counters that argument by stating that the parents voluntarily gave up their Chinese nationality by ordinarily living in Canada and attaining Canadian citizenship. Therefore, their kid was not born to parents of Chinese nationality, and hence could not invoke clause (3).

Further to Scorpio – According to (3) the parents were not regarded as resident of HK since their residence is Canada.
So resident of HK while temporarily away who give birth to a child overseas, the child would be entitled HK residence.

No matter Lamb’s parents are of Chinese nationality or not, the Immigration Dept have determined that his parents are already resident in Canada, and Lamb himself is Canadian by nationality and therefore not of Chinese nationality. Article 24(2)(3) doesn’t apply since Lamb isn’t of Chinese nationality. A prerequisite of Article 24(2)(3) is that the person him/herself is of Chinese nationality. The nationality status(es) of his/her parent(s) is/aren’t that relevant.

That’s because the Nationality Law of the People’s Republic of China is listed in Annex III of the Basic Law. And, yes, theoretically and constitutionally they can list whatever they want in Annex III.